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Climate Change Justice Eric A University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2008 Climate Change Justice Eric A. Posner Cass R. Sunstein Follow this and additional works at: http://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Eric Posner & Cass R. Sunstein, "Climate Change Justice," 96 Georgetown Law Journal 1565 (2008). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Climate Change Justice ERIC A. POSNER* & CASS R. SuNSTEIN** Reductions in greenhouse gas emissions would cost some nations much more than others and benefit some nations far less than others. Significant reductions would likely impose especially large costs on the United States, and recent projections suggest that the United States is not among the nations most at risk from climate change. In these circumstances, what does justice require the United States to do? Many people believe that the United States is required to reduce its greenhouse gas emissions beyond the point that is justified by its own self-interest, simply because the United States is wealthy, and because the nations most at risk from climate change are poor This argument from distributive justice is complemented by an argument from corrective justice: The existing "stock" of greenhouse gas emissions owes a great deal to the past actions of the United States, and many people think that the UnitedStates should do a great deal to reduce a problem for which it is disproportion- ately responsible. But there are serious difficulties with both of these arguments. On reasonableassumptions, redistributionfrom the United States to poor people in poor nations would be highly desirable,but expenditures on greenhouse gas reductions are a crude means ofproducing that redistribution:It would be much better to give cash payments directly to people who are now poor The argumentfrom corrective justice runs into the standardproblems that arise when collectivities, such as nations, are treated as moral agents: Many people who have not acted wrongfully end up being forced to provide a remedy to many people who have not been victimized Without reachingspecific conclusions about the proper response of any particularnation, and while emphasizing that welfarist arguments strongly support some kind of interna- tional agreement to protect against climate change, we contend that standard argu- ments from distributive and correctivejustice fail to provide strong justificationsfor imposing special obligationsfor greenhouse gas reductionson the United States. This claim has general implicationsfor thinking about both distributivejustice and correc- tive justice arguments in the context of international law and internationalagree- ments. TABLE OF CONTENTS INTRODUCTION ........................................... 1566 I. ETHICALLY RELEVANT FACTS ................................. 1573 * Kirkland & Ellis Professor, University of Chicago Law School. © 2008, Eric A. Posner. ** Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago. © 2008, Cass R. Sunstein. Thanks to Matthew Adler, Joseph Aldy, Susan Bandes, Daniel Cole, Tom Ginsburg, Robert Hahn, Richard McAdams, Frank Michelman, Jonathan Nash, David Strauss, Adrian Vermeule, David Weisbach, and Noah Zatz for helpful com- ments. Thanks too to workshop participants at Harvard Law School and the University of Chicago Law School. We are grateful to Bryan Mulder for superb research assistance. 1565 HeinOnline -- 96 Geo. L.J. 1565 2007-2008 1566 THE GEORGETOWN LAW JOURNAL [Vol. 96:1565 A. IN GENERAL ..................................... 1574 B. EMITTERS ........................................ 1576 C. VICTIMS ........................................ 1580 II. CLIMATE CHANGE AND DISTRIBUTIVE JUSTICE .................... 1583 A. THE ASTEROID . .................................... 1583 B. CLIMATE CHANGE: FROM WHOM TO WHOM? . 1586 C. TWO COUNTERARGUMENTS ........................... 1588 1. Catastrophe ........... : ..................... 1588 2. Ineffective or Corrupt Governments ................... 1589 D. PROVISIONAL CONCLUSIONS ........................... 1590 III. CORRECTIVE JUSTICE .................................. 1591 A. THE BASIC ARGUMENT .................................... 1592 B. THE WRONGDOER IDENTITY PROBLEM ....................... 1593 C. THE VICTIM/CLAIMANT IDENTITY PROBLEM .................... 1595 D. THE CAUSATION PROBLEM ............................ 1597 E. THE CULPABILITY PROBLEM ............................ 1597 1. Negligence in General ........................... 1598 2. Negligent Government? . ......... ........ ....... 1600 3. The Government vs. the Public ................... 1601 F. ROUGH'JUSTICE ................................... 1602 IV. PER CAPITA EMISSIONS ................................ 1602 A. FACTS ......................................... 1603 B. A LITTLE DOUBLESPEAK? OF "COMMON BUT DIFFERENTIATED RESPONSIBILITIES" ................................... 1607 C. A (MILDLY) DISGUISED CLAIM FOR CROSS-NATIONAL REDISTRIBUTION .................................. 1608 D. A FINAL NOTE ON FAIRNESS ........................... 1610 CONCLUSION ............................................ 1611 INTRODUCTION The problem of climate change raises difficult issues of science, economics, and justice. Of course the scientific and economic issues loom large in public HeinOnline -- 96 Geo. L.J. 1566 2007-2008 2008] CLIMATE CHANGE JUSTICE 1567 debates, and they have been analyzed in great detail.1 By contrast, the question of justice, while also playing a significant role in such debates, has rarely received sustained attention.2 Several points are clear. Although the United States long led the world in greenhouse gas emissions, China is now the world's leading emitter. 3 The two nations account for about 40% of the world's emis- sions, but to date, they have independently refused to accept binding emissions limitations, apparently because of a belief that the domestic costs of such limitations would exceed the benefits.4 The emissions of the United States and China threaten to impose serious losses on other nations and regions, including Europe but above all India and Africa.5 For this reason, it is tempting to argue that both nations are, in a sense, engaging in tortious acts against those nations that are most vulnerable to climate change. This argument might seem to have special force as applied to the actions of the United States. While the emissions of the United States are growing relatively slowly, that nation remains by far the largest contributor to the existing "stock" of greenhouse gases. Because of its past contributions, does the United States owe remedial action or material compensation to those nations, or those citizens, most likely to be harmed by climate change? Prin- ciples of corrective justice might seem to require that the largest emitting nation pay damages to those who are hurt6-and that they scale back their emissions as well. Questions of corrective justice are entangled with questions of distributive justice. The United States has the highest Gross Domestic Product of any nation in the world, and its wealth might suggest that it has a special duty to help to reduce the damage associated with climate change. Are the obligations of the comparatively poor China, the leading emitter, equivalent to those of the comparatively rich United States, the second-leading emitter? Does it not matter 1. For a useful but controversial overview of both, see NicHoLAs STERN, THE ECONOMICS OF CLIMATE CHANGE (2007). On the economics, see generally William Nordhaus, The Challenge of Global Warm- ing: Economic Models and Environmental Policy (2007), available at http://nordhaus.econ.yale.edu/ dice mss_072407_all:pdf (unpublished manuscript); for an overview of the science, see generally JOHN HOUGHTON, GLOBAL WARMING: THE CoMPLETE BRIEFING (3d ed. 2005). The most detailed reports come from the International Panel on Climate Change [hereinafter IPCC], available at http://www.ipcc.chl index.htm. 2. Valuable treatments include Dale Jamieson, Adaptation, Mitigation, and Justice, in PERSPECTnvE ON CLIMATE CHANGE: ScIENCE, ECONoMICs, PoLmCs, ETmIcs 217 (Walter Sinnott-Armstrong & Richard Howarth eds., 2005); Julia Driver, Ideal Decision Making and Green Virtues, in id. -at 249. Some of the ethical issues are also engaged in STERN, supra note 1. 3. See Audra Ang, China Overtakes U.S. as Top C0 2 Emitter, AssociATED PRESs ONLINE, June 21, 2007, availableat http://abcnews.go.com/International/wireStory?id= 3299098. 4. 'See ScoTr BARRETT, ENVIRoNMENT & STATECRAFr (2004), for a good overview of the American position, with particular reference to the Kyoto Protocol; see NAT'L DEv. & REFORM COMM'N, PEOPLE'S REPuBLIc OF CHINA, CHINA's NATIONAL CLIMATE CHANGE PROGRAMME (June 2007), for an overview of the Chinese position. 5. See WILLIAM NORDHAus & JosEPH BOYER, WARMING THE WORLD 91 (2000). 6. See, e.g., Jagdish Bhagwati, A Global Warming Fund Could Succeed Where Kyoto Failed, FIN. TaIEs, Aug. 16, 2006, at 13. HeinOnline -- 96 Geo. L.J. 1567 2007-2008 1568 THE GEORGETOWN LAW JOURNAL [Vol. 96:1565 that China's per capita emissions remain a mere fraction of that of the United States? Perhaps most important: Because of its wealth, should the United States
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